Search the KHIT Blog

Tuesday, September 12, 2023

Democracy and privacy. Can we have the former absent the latter?

Some relevant new reading.

On January 5, 2021, an extraordinary event took place in Georgia. In a state where politics had long been stained by white supremacy, voters turned out in record numbers to elect their first African American senator, the Reverend Raphael Warnock, and their first Jewish American senator. Warnock was only the second Black senator to be elected in the South since Reconstruction, joining the Republican Tim Scott of South Carolina. That night, he introduced supporters to his mother, a former sharecropper, noting that “the 82-year-old hands that used to pick somebody else’s cotton picked her youngest son to be a United States senator.” For many, the election presaged a brighter, more democratic future. “There’s a new South rising,” declared LaTosha Brown, co-founder of Black Voters Matter. “It’s younger, it’s more diverse…and it’s more inclusive.” This was the democratic future that generations of civil rights activists had been working to build.

The next day, January 6, Americans witnessed something that seemed unimaginable: a violent insurrection, incited by the president of the United States. Four years of democratic decline had culminated in an attempted coup. The fear, confusion, and indignation that many Americans felt as they watched these events unfold echo the way people in other countries have described feeling as their own democracies unraveled. What we had just lived through—a surge in politically motivated violence; threats against election workers; efforts to make it harder for people to vote; a campaign by the president to overturn the results of an election—was democratic backsliding. The republic did not collapse between 2016 and 2021, but it became undeniably less democratic.

In a span of twenty-four hours on January 5 and January 6, 2021, the full promise and peril of American democracy were on vivid display: a glimpse of a possible multiracial democratic future, followed by an almost unthinkable assault on our constitutional system.

Multiracial democracy is hard to achieve. Few societies have ever done it. A multiracial democracy is a political system with regular, free, and fair elections in which adult citizens of all ethnic groups possess the right to vote and basic civil liberties such as freedom of speech, the press, assembly, and association. It is not enough for these rights to exist on paper: individuals of all ethnic backgrounds must enjoy equal protection of democratic and civil rights under the law. The 1964 Civil Rights Act and the 1965 Voting Rights Act finally established a legal foundation for multiracial democracy in America. But even today, we have not fully achieved it…

Levitsky, Steven; Ziblatt, Daniel. Tyranny of the Minority (pp. 3-4). Crown. Kindle Edition.

 Lots of new study here. Just getting going. I got onto the Danielle Keats Citron book by way of Charlie Warzel in The Atlantic:
We are all shedding data like skin cells. Almost everything we do with, or simply in proximity to, a connected device generates some small bit of information—about who we are, about the device we’re using and the other devices nearby, about what we did and when and how and for how long. Sometimes doing nothing at all—merely lingering on a webpage—is recorded as a relevant piece of information. Sometimes simply walking past a Wi-Fi router is a data point to be captured and processed. Sometimes the connected device isn’t a phone or a computer, as such; sometimes it’s a traffic light or a toaster or a toilet. If it is our phone, and we have location services enabled—which many people do, so that they can get delivery and Find My Friends and benefit from the convenience of turn-by-turn directions—our precise location data are being constantly collected and transmitted. We pick up our devices and command them to open the world for us, which they do quite well. But they also produce a secondary output too—all those tiny flecks of dead skin floating around us.

Our data are everywhere because our data are useful. Mostly to make people money: When someone opens up their phone’s browser and clicks on a link—to use the most basic example—a whole hidden economy whirs into gear. Tracking pixels and cookies capture their information and feed it to different marketers and companies, which aggregate it with information gleaned from other people and other sites and use it to categorize us into “interest segments.” The more data gathered, the easier it is to predict who we are, what we like, where we live, whom we might vote for, how much money we might have, what we might like to buy with it. Once our information has been collected, it ricochets around a labyrinthine ad-tech ecosystem made up of thousands of companies that offer to make sense of, and serve hyper-targeted ads based on, it.

Our privacy is what the internet eats to live. Participating in some part or another of the ad-tech industry is how most every website and app we use makes money…

…Danielle Keats Citron argues in her book The Fight for Privacy. Privacy is freedom, and freedom is necessary for humans to thrive. But protecting that right is difficult, because privacy-related harm is diffuse and can come in many different forms: At its most extreme, it can be physical (violence and doxing), reputational (the release of embarassing or incorrect information), or psychological (the emotional distress that comes along with having your intimate information taken from you). But, according to work by Solove and Citron, proving harm that goes beyond concrete economic loss is difficult in legal terms….

….The internet as we know it is a glorious, awful, intricate, sprawling series of networks that needs our information in order to function. We cannot go back to a time before this was true—before turn-by-turn directions and eerily well-targeted ads, before we carried little data-collection machines in our pockets all day—and nor would all of us want to. But we can demand much more from the reckless stewards of our information. That starts with understanding what exactly has been taken from us. The fight for our privacy isn’t just about knowing what is collected and where it goes—it is about reimagining what we’re required to sacrifice for our conveniences and for a greater economic system. It is an acknowledgement of the trade-offs of living in a connected world, but focusing on what humans need to flourish. What is at stake is nothing less than our basic right to move through the world on our terms, to define and share ourselves as we desire.
I've been studying privacy issues for a long time. Going back to grad school and before it. From my 1998 Thesis.


...“Privacy” is a term with multiple connotations. We mandate by law and social norms that certain activities be conducted “in private.” The privacy synonyms “secluded” and “exclusive” are positive keywords in real estate advertising. A media microphone rudely thrust in the face of a grieving parent who has just lost a child to an accident is disdainfully viewed as an egregious “invasion of privacy.” Similarly, celebrities bemoan (and frequently litigate against) their losses of privacy at the hands of their tabloid pursuers. In some major public policy contexts, however, privacy seems to be what we value most for 
ourselves, and what we would most like to deny others by casting aspersions on their privacy claims.
How does a drug-abstinent individual counter the implication of cover-up motive in the question “If you’ve nothing to hide, how can you object to being tested?”—beyond the problematic retort “It’s none of your business.”  We will examine developments in U.S. legal privacy norms, including current concerns regarding confidentiality in a digital age. We will then survey ethological, anthropological, cultural, historical, psychological, and philosophical evidence supporting the role of privacy in the development and functioning of socially competent citizens. Bentham got it wrong. The conventional framing of the privacy issue—which posits an intractable antagonism between personal privacy rights and social imperatives—is inadequate. A deeper understanding is required. Paradoxical though it may seem on a surface view, it can be shown that privacy is at once a personal and civic ethical good. The Panopticon is by wide margin a net loser: devoid of enduring moral force with respect to the dissolute; irrelevant at best with respect to the upright...

As I have alluded to elsewhere in this thesis, one of the most durably contentious of American Constitutional claims involves the right to privacy. If we are to establish a case for privacy as a fundamental ethical principle that the law ought reflect and administer with vigor, we ought examine a bit of its legal, sociological, and philosophical evolution. In Chapter 4 we began by examining the historical evolution of search-and-seizure restraints that ultimately found their way into our Fourth Amendment, and we ended with a review of the convoluted, often contradictory U.S. Supreme Court case law history and constitutional interpretation theory that undergirds our current legal and political confusion over the role of privacy as it pertains to drug policy. We begin here with some general sociopolitical and legal theory reflections that serve as foundation for and transition into the larger philosophical concepts bearing on privacy discussed in the latter part of this chapter.

Some regard privacy as an inseparable aspect of personal autonomy requisite for the very notion of liberty we ostensibly revere as a cardinal element our social and legal order. Critics, on the other hand, either dismiss the notion of a general right to privacy out of hand, or assert that it is a relatively recent, weak, and “derivative” declaration, one inherently inimical to and necessarily deferential to society’s “right-to-know” in the interest of commercial efficiency, public safety, and criminal prosecution. Those holding this latter position view the quest for privacy as a reaction to increasing urbanization and advances in information processing technologies, that the inhabitants of earlier eras and non-industrial cultures had and have little concern with our notions of “privacy.” Critics of the former persuasion who disavow the very notion of a general right to privacy under federal law find the concept adequately accounted for principally in terms of property rights...
Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

And, yeah, I know, this refers to government actions, not the "private sector" (principally the domain of torts in the wake of private sector violations**). Read my Thesis. Were things only that simple and sharply bifurcated any more. Beyond that, recently recurrent beg-offs (at SCOTUS, no less) that 4th Amendment rights are not "part of our history and culture" and are "unenumerated" do not pass the laugh test for anyone capable of reading basic English and counting to four"persons, houses, papers, and effects."
** Moreover, let's be clear here. "Democracy" specifically pertains to a form of "government." The question at hand goes to the title of this post—the extent to which mutual respect for "presumptive" privacy is inextricably a necessary component of democratic govenance. (Presumptive, not absolute.) Facially evident to me. But, that's just me. More on this assertion in a bit.
FYI: the draft Epilogue to my grad Thesis. 


Burrowed well into Dr. Citron‘s book. The numerous recountings of “sexploitation” deepfake violations of “intimate privacy” are rather creepy. To put it mildly.
Agonistic Privacy & Equitable Democracy
16 NOV 2021
Scott Skinner-Thompson

This Essay argues that legal privacy protections—which enable individuals to control their visibility within public space—play a vital role in disrupting the subordinating, antidemocratic impacts of surveillance and should be at the forefront of efforts to reform the operation of both digital and physical public space. Robust privacy protections are a touchstone for empowering members of different marginalized groups with the ability to safely participate in both the physical and digital public squares, while also preserving space for vibrant subaltern counterpublics. By increasing heterogeneity within the public sphere, privacy can also help decrease polarization by breaking down echo chambers and enabling the healthy contestation of ideas.
Democratic Privacy
Russell C. Bogue

This article proposes a novel justification for privacy rights based on the relationship between privacy and the democratic devices of voting and deliberation. Through an epistemic conception of democracy, I show that privacy, defined as epistemic inaccessibility, justifies a reliance on the vote as the voluntary mechanism of revealing citizen preferences, even in the face of theoretically more responsive methods. Respecting the inaccessibility of citizens' views ensures that democratic governments remain reliant on, rather than merely responsive to, the wills of their citizens. In addition, spaces of epistemic inaccessibility both motivate a basic form of deliberation between citizens and foster healthy deliberative practices by blunting the potentially corrosive effects of publicity. Privacy can thus be seen as a presupposition of core democratic institutions, and not just as an individual right possessed by members of a liberal-democratic polity. This new conceptualization provides a powerful additional justification for privacy rights and suggests an alternative approach to enacting privacy-protective measures.
Privacy rules can promote identity formation because privacy can help us to figure out who we are and what we believe, by ourselves and with our intimates and confidants. In my previous book, Intellectual Privacy, I argued that a special kind of privacy (the intellectual privacy of the title) is necessary in a democracy because it allows us to develop our political beliefs free from the skewing effects of being watched, monitored, and judged.8 Intellectual privacy secures the intellectual freedom to figure out what we believe about the world and our place in it. Intellectual privacy is essential to the development of our identities, but it is not the only kind of privacy that matters to our identities. The same kinds of privacy protections that can allow us to develop our political and religious beliefs can also help us figure out who we are more generally.

Richards, Neil. Why Privacy Matters (pp. 6-7). Oxford University Press. Kindle Edition.
...Privacy is not the exclusive provenance of jurists and legal scholars any more than words belong to lexicographers or apples to nutritionists. Privacy is a collective work in progress.

The same can be said for the liberty and justice we affirm as the birthright of all Americans. Add privacy to make three, and you have what might be called the holy trinity of America’s secular faith. The values are distinct yet interdependent enough to comprise a unified whole. Without liberty—that is to say, without the freedom to choose—privacy is merely a euphemism for loneliness. Without justice—that is to say, without the fullest realization of democracy—privacy is merely the privilege of a few, often little more than a cloak thrown over our naked inequalities.

Keizer, Garret. Privacy (BIG IDEAS//small books) (pp. 65-66). Picador. Kindle Edition.
I could continue on and on and on... But. it would never placate the Borkian "Yes, but" cohort. 
I return for a moment to my Thesis thoughts during the winter of 1998:
…In Legislating Privacy: Technology, Social Values, and Public Policy, … Priscilla Regan argues that we must re-frame the issue 180 degrees for a proper perspective and defense of privacy:

The philosophical basis of privacy policy overemphasizes the importance of privacy to the individual and fails to recognize the broader social importance of privacy. This emphasis on privacy as an individual right or an individual interest provides a weak basis for formulating policy to protect privacy...As a result privacy has been on the defensive, with those alleging a privacy invasion bearing the burden of proving that a certain action does indeed invade privacy and that the “social” benefit to be gained from the privacy invasion is less important than the individual harm incurred.

Regan sees in the extensive empirical data gathered to assess “privacy concerns” throughout the past twenty-odd years (and which she summarizes in some detail in her book) an inadequately articulated recognition of privacy as a social value:

Privacy is a common value in that all individuals value some degree of privacy and have some common perceptions about privacy. Privacy is also a public value in that it has value not just to the individual or to all individuals in common but also to the democratic political system. The third basis for the social importance of privacy is derived from the theoretical literature in economics. Privacy is rapidly becoming a collective value in that technology and market forces are making it hard for any one person to have privacy without all persons having a similar level of privacy.

For Regan, “viewing privacy as a common value—as a social claim rather than an individual claim—would also shift the burden of proof”:

Rather than leaving it up to individuals to show damages or to prove willful intent on the part or the record keeper, the burden would be placed on the organization. The organization would be responsible for justifying the need for the information rather than the individual being responsible for justifying withholding the information.

Which of course brings us right back to 4th Amendment “reasonableness” and “probable cause”…

Finally, what of “an understandable sense of indignation” at being pressured or coerced to “prove” one’s abstinence? Is such a legitimate response? A plausible reading of Kantian principles of reciprocity and “universal maxims” might have us conclude that, rather than framing the privacy issue as one of “right” versus “duty,” perhaps we have a “duty” to defend this fundamental “civil right” as the core element of reciprocal autonomy it truly is. Kant was adamant regarding our duty to be truthful. He was equally adamant with respect to the propriety of indignation as response to gratuitous or groundless insinuations of cover-up:

The man who is asked whether or not he intends to speak truthfully in the statement that he is now to make and who does not receive the very question with indignation as regards the suspicion thereby expressed that he might be a liar, but who instead asks permission to think first about possible exceptions—that man is already a liar (in potentia). This is because he shows that he does not acknowledge truthfulness as in itself a duty but reserves for himself exceptions from a rule which by its very nature does not admit of any exceptions, inasmuch as to admit of such would be self-contradictory. ( Immanuel Kant, On a Supposed Right to Lie Because of Philanthropic Concerns, [430] )

Well, that begs the obvious rub, insofar as liars can and do adopt the indignant response in ruse. Such has always been the case, but equally obvious should be that inverting the due process “presumption of innocence” fundamental to our political and legal order will have little to no effect whatever on the mores of the duplicitous. It will, however, ensure that society in general becomes comprised of those who—as Justice Scalia stated so well in his Treasury dissent—“suffer a coarsening of our national manners that ultimately give the Fourth Amendment its content, and who become subject to the administration of federal officials whose respect for our privacy can hardly be greater than the small respect they have been taught to have for their own.”

Smith claims she is “clean,” and her resume tends to back her assertion. Jones suspects otherwise, often on the basis of irrelevant or bogus “data.” Beyond “mere” legalisms, the moral burden of proof is on the latter. Smith has a moral claim to indignation in response to groundless inquiry.A duty, even. Adverse inference toward such indignation is the moral equivalent of the ad hominem attack, disdained in rational discourse, ethically bankrupt in policy practice.
Back then my primary focus was not specifically attuned to the broader privacy-democracy "social utility" rationale. But neither was I clueless to the implication.**
** To the extent I had any clue about anything at all. My elder daughter was dying from Stage IV metastatic hepatoma. I'd been taking care of her for two years, sleeping on a cot in her Hollywood apartment, working on my Thesis when I could. Notwithstanding that my Thesis ran to nearly 300 pages, I had enough material for at least another 50-60. I graduated 6 weeks before she died. There are no words.
One of my principal thesis citations was Cuddihy's 4th Amendment dissertation. It's now a 1,008 pg. book ($227.90 at Amazon). I've submitted an Amazon review.
The original Cuddihy PhD dissertation was my principal grad thesis reference

This work was a bedrock of my 1998 M.A. Thesis at UNLV (mass drug testing 4th Amendment issues). It came to me via Interlibrary Loan from Claremont College in 4 large bound volumes totaling about 1,800 pages. The renowned constitutional scholar Leonard J. Levy was Cuddihy's Dissertation Chair. THIS published book has gotta be the seminal resource on the 4th Amendment. I've not bought it; I don't have to. Trust me, what a detailed history! Going WAY back before the founding of the U.S.

I photocopied ~300 pgs of the Cuddihy dissertation. Pockets full of nickels at the library and Kinko's.
So, I went quickly back through some of my Kindle stash, recent books addressing "Democracy" and its myriad issues...
 Keyword-searching "privacy." Well, Zilch, Nein, Nil, Nada, Nicht, Nyet. 
Disappointing, that.

Consider the dissent by Justice Barkett in the 11th Circuit appellate case that led directly to the Chandler Supreme Court case:

"... Not only is the privacy surrounding an individual’s bodily functions at stake, but all of the rights associated with participating in a democracy—rights of association, freedom of speech, ballot access, and the right to cast an effective ballot. We are not dealIng merely with the denial of a job opportunity, but with the denial of opportunity to participate in our democratic form of government. In light of the interference with these liberty interests, giving the governmental interests here the greater weight seems especially unreasonable.

‘Finally. I am concerned about the majority’s conclusion that the government’s actions in this case do not violate the First Amendment. The majority maintains that the government's purpose is not suppression of free expression. Yet. It supports its holding by citing the importance of ensuring that elected officials are "persons appreciative of the perils of drug use” and “sympathetic to drug interdiction efforts.” Establishing a certain ideology as a “qualification” for holding public office appears to be a content- based restriction on free expression. Drug policy is a politically charged issue confronting many government officials who have disparate points of view regarding the “Drug War” and the efficacy of the means employed in fighting it. It is the function of public office holders to write, enforce, and interpret the laws, including drug laws. By conditioning holding public office upon submission to drug screening, however, the Georgia legislature effectively bans from positions of political power not only those candidates who might disagree with the current policy criminalizing drug use, but also those who challenge the intrusive governmental means to detect such use among its citizenry. This statute is neither neutral nor procedural, but, in the majority’s own characterization, attempts to ensure that only candidates with a certain point of view qualify for public office.”
( Chandler c. Miller, 11th Circuit, Docket 95-8230: March, 1998.) [Thesis pg 18]
[footnote 14] Two excellent recently published resources address the multifaceted nuances of “privacy.” See The Right to Privacv by Ellen Alderman and Caroline Kennedy (New York, Alfred A. Knopf, Inc., 1995) and Private Matters: In Defense of the Personal Life by Janna Malamud Smith (Reading, MA, Addison-Wesley, Inc.. 1997). While the Alderman-Kennedy book is principally a compendium of examples of privacy transgressions in a variety of contexts, the latter work is a detailed and eloquent defense of privacy as a psychological necessity and net moral good. [Thesis pg 19]

These two were current at the time of my grad work. I just bought the Kindle editions. Nice to see that they have aged pretty well topically, notwithstanding the subsequent exponential advances of panoptic digiltech.
BTW, apropos of The Power Worshippers (cited above), you might want to see

~900 pg PDF here
One-Stop Strategic Shopping for those yearning to quickly (“1st 180 days”) and aggressively eliminate the Radical Elite Secular Woke Left Eurocentric Cosmopolitan Cultural Commie Marxist Fascist Wilsonian Gender-dysphoric LGBTQIA+ Groomers Now Enslaving Us via Their Godless Greenie Globalist Deep Administrative State Socialist Soros Liberty-Hating CCP-loving Hegemony.**
** I probably owe Trump's former flack Stephen Miller a residual for that sentence.
Interesting reading. Trust the Plan.


The Declaration of Independence famously asserted the belief of America’s Founders that “all men are created equal” and endowed with God-given rights to “Life, Liberty, and the pursuit of Happiness.” It’s the last—“the pursuit of Happiness”—that is central to America’s heroic experiment in self-government.

When the Founders spoke of “pursuit of Happiness,” what they meant might be understood today as in essence “pursuit of Blessedness.” That is, an individual must be free to live as his Creator ordained—to flourish. Our Constitution grants each of us the liberty to do not what we want, but what we ought...
The American Republic was founded on principles prioritizing and maximizing individuals’ rights to live their best life or to enjoy what the Framers called “the Blessings of Liberty.” It’s this radical equality—liberty for all—not just of rights but of authority—that the rich and powerful have hated about democracy in America since 1776. They resent Americans’ audacity in insisting that we don’t need them to tell us how to live. It’s this inalienable right of self-direction—of each person’s opportunity to direct himself or herself, and his or her community, to the good— that the ruling class disdains.

With the Declaration and Constitution, our nation’s Founders handed to us the means with which to preserve this right. Abraham Lincoln wrote of the Dec- laration as an “apple of gold” in a silver frame, the Constitution. So must the next conservative President look to these documents when the elites mount their next assault on liberty.

Left to our own devices, the American people rejected European monarchy and colonialism just as we rejected slavery, second-class citizenship for women, mercantilism, socialism, Wilsonian globalism, Fascism, Communism, and (today) wokeism. To the Left, these assertions of patriotic self-assurance are just so many signs of our moral depravity and intellectual inferiority—proof that, in fact, we need a ruling elite making decisions for us…
Okeee Dokeee, then. For openers, that is SO Adrian Vermeule. Your Christian Nationalist Betters will fill you in on the details regarding that which you properly, Blessedly "ought." Moreover, ya gotta love the by-now staple conflation of The 1776 Declaration ("liturgical pursuit of Blessedness") with the 1789 Constitutional Liberty To Do What We OUGHT.

Broad brush ad homina semantic graffiti aside, you will also exceed your Lifetime Permissible Doses of Strawmen, False Dichotomies, Appeals to Authority, unhelpfully vague platitudes, and glaring outright contradictions.

I'd speculate it to be a safe bet that most of these Heritage Heroes of our Constitutional Common Good Hermeneutics can't even spell the latter word.
UPDATE NOTE: I'm now about 200 pages into this Beaut. A good bit of it thus far—the creaky-assed federal Article I legislative processes and Article II departmental ops reform stuff—I really don't have much pick with. The recurrent smearing of "the Left," though, does nothing to enhance the authors' cred. And, their conceit that they are the self-appointed Advance Transition Team (and, implicitly a Devotees' hiring hall) gearing up to fully grease the GOP POTUS47 skids on Jan 20th, 2025 beginning at "So Help Me God," 12:01pm EST is, well, a Bit Much.

Oughta be "fun." 416 days to the elections.

Republican presidential candidates including ex-President Donald Trump made appearances at the Washington, DC-based Pray Vote Stand Summit Friday night in efforts to win over the right-wing Christian evangelical base, The Daily Beast reports.

"Throughout the event at the Omni Shoreham hotel," the Beast notes, "attendees worshiped God with song and prayer and heard speakers drive home the urgency to elect Biblically-minded candidates and protect children from 'indoctrination' in public schools. More than a few times evangelical activists warned of 'Marxist,' 'radical left' and 'transgender' ideologies."
Yeah. Read the 2025 Plan. Let Us Prey.

More to come...

No comments:

Post a Comment